Supplemental Statement Of Case

[Charleese]

Hi Everyone, hope someone can help me with this.

My husband received a Letter with Supplemental Statement of Case dated 4/10/07 attached to it. Letter starts off stating "This is in further reference to the appeal you have filed from our decision on your claim for benefits. It is not a decision on the appeal you have initiated. It is a Supplemental Statement of the Case which contains changes or additions to the original Statement of the Case sent to you on 8/11/2006. A previous Supplemental Statement of the Case was sent on 10/20/06."

In the 4/10/07 Supplemental Statement of Case under the heading Decision it states: "Entitlement to an earlier effective date for status post fracture left tibial tubercle with osteoarthritic changes and chronic chondromalacia, 30 percent from 06/22/200 is not established."

My question is how in letter it can state that it is not a decision on the appeal initiated and then under Decision in Supplemental Statement of Case it states Entitlement to an earlier effective date .....is not established. Has anyone experienced this before and is the VA allowed to do this?

To us this is totally confusing. If a decision was not made why are they stating in Supplemental Statement of Case that one was made not to established an earlier effective date.

Any help hadit members can give me on this matter will be greatly appreciated.

Thanks!

[Berta]

With a SSOC you are still in the appeal process.

Technically decisions are only final when the veteran fails to appeal them.

They should have given you 60 days to respond-

The VA is attempting to lower that to 30 days-if you read the proposed reg it is to make the claims process more efficient or some bull crap-

It only means they can again deny 30 days sooner.

I have posted how vets can challenge this proposed reg at the Federal Register site- I can post my letter to the Fed Register if anyone wants to use it as idea for their response.

You could attempt to respond to this SSOC with more evidence or- if you feel they have enough evidence and should have changed the EED- they should also have sent by now a I-9 form.

I posted info at hadit on how the I-9 should be handled.

I got the same type of SSOC many times in the past as well as last one in 2005.It is the same wording-

however- check the evidence section carefully-

In my case they listed "internet printouts" as the only evidence I had sent-

I had significant medical evidence as well as -by then- 2 IMOs.

The printouts were VA regs, M21-1 regs, the DROs job description and medical treatises that supported my IMOs.

Did they consider all of the medical evidence that supports an EED based on the rating schedule from time of EED claimed to the decision?

Edited April 30, 2007 by Berta

[sixthscents]

Charleese,

Yes, it is confusing... lets try and sort it out ok?

1 You file a claim

2 The VA renders a decsion

3 You accept decision or file a Notice of Disagreement or VA Form 9

4 IF NOD, then claim is re-rated by a different VA rating officer who issues a decision and a statement of case (SOC)

5. Again you can NOD, or submit to BVA using VA form 9

6 If NOD, rater looks at it again and issue a Supplemental Statement of Case...

(NOW the SSOC can be for 1 item of several, it just depends upon what you submitted new evidence for, or gave reasonable ground for review etc.... basically its was up to you when you filed the 2nd appeal)

Now... if you get "new and material evidence", you can kick it right back to the raters at the Regional Office or submit a VA form 9 for a formal appeal to BVA....

So......... confusing isnt it? And to be honest I left a WHOLE bunch of stuff out, and cut a few corners... but thats the bare bones of it... to be honest you can... if you do it right, keep a claims at a regional office, for them to rate again, and again, and again..... I've never once HAD to push a case up to BVA, though I have done it... You can AT ANY TIME elect to have you claim sent to BVA (Bureau of Veterans Affairs), and have it decided upon... its called a formal or traditional appeal, but normally (OPINION....... OPINION) I have found that things move quicker at the regioanal office, but some claims get stalled there, and the only option seems to be to kick it to BVA.

The SSOC can and does "clarify" decsions rendered, and can actually make further decisions upon the issue for which it was initiated... without making a decison.... it just UPHELD the other earlier decison right? Though I have seen them make complete decisions in an SSOC and I know of no reason that they could not. It is just limited in scope is all... OK?

Personally if you have an SSOC, then it is probably time to REALLY review your evidence etc., and if you believe that the evidence bears you out, and follows VA regulatory guidance, well then I'd probably send it on to BVA... and let them sort it out, BUT... beware, look very carefully at the REASON the SOC and SSOC gave for denial, and really consider wether it passes all the requirements under VA law... because the BVA will make the SAME conclusion if the raters were correct. SO, if possible you may want to try and gather further evidence, etc. You have only a short window to respond... but there are some TRICKS, to getting around that... but

there are actually processes in pace to allow you extra time... you can submit the VA Form 9 and gather the evidence, and submit it to the BVA with it as an addendum... and I do that all the time..., you can ASK that a decision be held pending a tests outcome etc.... so

I am not familiar with your husbands case, but this is an anonymous forum.. could you give us more details and perhaps the REASON they decided against?.....

[sixthscents]

HA - Berta we were both typing the answer to this at the same time...... and we pretty much agree.

[Berta]

Bob -that was SUPERB!

I used to be able to draw VA out in my past claims by getting SSOCs-

and respondng immediately with more evidence.

These days the Buffalo RO doesn't even read responses even with IMOs attached-

But still I agree with you-=

when the VA sent my claim to the BVA my POA would not support a remand and then when I got it right away- they acted like they did that --yeah right-

I feel since the RO will ultimately get back many claims from BVA on remand-

it pays to keep you claim at the RO and certainly fight any transfer to the BVA if you can-as I did-

because even if the BVA makes an award -it STILL goes back to the RO for the rating etc.

I also learned that the more you can draw them out on SSOCs the more they can put a foot in their mouth-

A SSOC I got in 1996 contained support for PTSD to heart disease claim from a VA doctor-

yet denial for DIC death due to VA medical care- which I won anyhow-

I think the 1996 statement is why the VA reopened by Motion something old at the BVA I had-that was denied-

still my medical evidence proves direct death due to AO.

Your explanation of the process is great.

[Charleese]

Hi Berta,

What they did was to take his CUE claim which you helped me with, and his 1958 claim and combined them, in there Decision in this SSOC.

As you know his CUE stated: "I feel that the VA committed clear and unmistakable error in a decision dated 1985, (copy enclosed) which is also referred to within page 16 of your recent Supplemental Statement of the Case I received, dated 6/23/05. The 1985 was a final decision. However, upon re-opening my claim, you awarded not only a service connected percentage to me but also, based on your own admission of CUE, on October 11, 2002, you granted a separate 10% for "tender scar of the left knee."

It goes onto state: I appreciate that you discovered that specific error on VA's part and rectified it but still the pain and scarring obviously had to be as present in 12985, when the 0% SC award was made, as it is now. Also the rating disability codes that VA applied at that time failed to be proper. I have enclosed a Memorandum, US CAVC #02-1981 - Cannon V. Principi, which is not only a CUE Similar to mine, and which was granted, but also points out deficiencies that are also lacking in your 1985 regarding my claim at that time. For example, "painful motion......equivalent to limited motion" as within US CAVC 02-1981 would have applied to my disability picture then too.

The "reasons and bases" that 3 rating specialists signed and agreed to in the 1985 decision in no way legally complies with the proper rating codes nor do these reasons and bases take into consideration the secondry osteoarthritic changes as noted with 2 separate documents in the medical records.

I request that you render a favorable decision on this claim under CUE, as it would manifestly change the outcome of the 2985 decision, providing an earlier effective date, and a proper 1985 rating, and would reflect a decision that is legally approve to the medical evidence you had in 1985."

In there decision they state: Please not that Clear and Unmistakable Error(s) can exist, only if there is a (previous determination) decision on which it is asserted, with some degree of specificity as to what the error is in a particulr formal VA decision that was rendered. You assert error in that the VA did not, and does not have any record, of a claim prior to September 1983. (He did not assert this they are the ones who asserted this.) There cannot be an assertion of error because there was no claim received by the US Department of Veterans' Affairs until the formally received VA Form 21-526 which was received in September of 1983 (09/09/1983). Service connection was granted from the earliest date for which a formal claim was received. There is no basis for a claim of Clear and Unmistable Error as to any grant of service connection earlier than September 1983, since VA had not received a claim prior to the claim of 09/09/1983."

As you know in 1958 he filed a claim with VA in Tazewell, VA, but they claim there is no records of his filing. In their decision to deny him CUE they are saying that there cannot be an assertion of error because there was no claim received by the VA until September of 1983.

I thought his CUE claim was explanatory. No where in it does it state that they are to use a date prior to 1983. It specifically states from 1983 up to 06/22/2000. They completely overlooked final decision of 1985.

Are we interrupting this CUE wrong. If so please let us know. Also if you see where it states a date prior to 1983 in this CUE please point it out to us.

Thanks!

Sorry for long message.

[Berta]

"They completely overlooked final decision of 1985."

I would send them copy again of the 1985 decision that you claim the CUE occurred in and ask them to reconsider their decision as it doesnt make sense- and tell them why-

CUE claims at ROs require someone with some expertise when they get them,to handle these claims.

I got a CUE SMC denial based on one point-they said the veteran had not filed a Sec 1151 claim in his lifetime-

it is right in the C file, the VARO said this claim was in rating board hours before he died,former VA Secretary Jesse Brown even got it- and I re-opened it when Rod died- I immediately asked them to consider their decision and sent them an OGC Prec opinion to support my CUE claim and that it is in my c-file.

They get creative on these CUE denials- but the good thing is someone actually does read these claims-and will state why they denied.

You can then hold them to that reason.

I had a CUE denied at the RO and the BVA-years ago - only to have it awarded by the RO Regional counsel when I filed a new claim in 2003.

The check sat here for days because no one at VA would tell me what it was for.

Finally the letter came. It was my old CUE awarded-that I had not appealed to the CAVC. and 40 thousand dollars.

It pays to keep at them and respond to any CUE denials.